SPEAKING OF RULE OF LAW AND A GRAND MASTER PLAN

The current crisis will be solved within the framework of the constitutional order and the frameworks of the laws. This was the bottom line of the statement from the presidency after the crisis management meeting Thursday the 25th of February in Ankara between President Abdullah Gül, prime minister Recep Tayyıp Erdoğan and chief of general staff İlker Başbuğ. Considering the serious political crises and the way it has rubbed off on the financial markets, it was about high time to send the message that people in and outside Turkey must trust in the political and legal institutions of the country to be able to deal with the crisis. Needless to say that a repetition of the February 21, 2001 incident, where former president Ahmet Necdet Sezer quarreled with then prime minister Bülent Ecevit in the National Security Council thereby more than adding to a severe financial crises Turkey if not directly setting it off, must be avoided at all costs. This is seemingly recognized by all parties in the political conflict.

That the statement centered round the issue of the workings of rule of law and the institutional checks and balances in Turkey should come as no surprise. Not just due to the recent historical experience of 2001. Rather one has to understand how the judiciary is for better and worse the gravity point of the crisis. The question of whose ideological outlook dominates within the judiciary is a key concern by supporters as well as adversaries of the AKP government. The former explains how the judiciary has traditionally been in alignment with the Kemalist etatist elite including the military. The rulings of the Kemalist stong-hold par excellence, the Constitutional court, serve as prime examples. The closure case against AKP and DTP in 2008, and the recent overruling / annulment in January 2010 of the reform package passed by parliament in July 2009, which would among other have allowed civilian courts to prosecute military personnel. Even though this overruling has had limited practical effects, military personnel do in fact face trial by civilian courts in the on-going Ergenekon-Sledgehammer investigations, it has been seen as a strong symbolic support to the conceptualization of some people in Turkey as being above the law in the interest of the nation-state. Hence, they argue that what is in fact going on is democratization and strengthening of rule of law in Turkey. Those adversaries with a more conservative Kemalist leaning lament, how the whole Ergenekon-Sledgehammer case is nothing but a politically initiated witch hunt on behalf of the current government, thus revealing how the AKP has succeeded in a civilian take-over of not only the bureaucracy but also the judiciary. In this context the problematic structuring of the HSYK (Supreme Board of judges and prosecutors) where the minister of justice among other has a seat is presented as one of many examples of the ways in which government can somehow pressure the judiciary.

The current case of prosecutor Ilhan Cihaner really shows the intricacies of these relations (intricacies which can barely be disclosed in the brief section that follows but nevertheless). In mid Feburary 2010 Cihaner was arrested and interrogated as part of the Ergenekon case. The arrest was warranted by another prosecutor, Osman Şanal, with special authorities. Cihaner had launched an investigation into an Islamic religious sect in 2007 and later in 2009 attempted to launch an investigation into the Gülen movement. These acts had put him squarely in the secular Kemalist camp who are fighting what they believe is an anti-secular AKP government. Immediately following upon the arrest the HSYK (Supreme Board of judges and prosecutors) removed the special powers of the prosecutor who had had Cihaner arrested. In the light of HSYK being seen as a Kemalist stronghold, this removal was interpreted as the secular Kemalist elite showing its muscle, an opinion among other aired by the ministry of justice. Yet the very same ministry of justice was accused by critics of intervening in order to slow down the removal of Şanal, something which gave him time to forward the investigation file on Cihaner to the courthouse. Meanwhile AKP critics also saw the detainment of Cihaner in the first place as an attempt on behalf of the government to stop any investigations relating to Islamic religious networks. The underlying assumption is of course that such investigations might hurt the ruling party since they have close relations to the Gülen movement and (excuse the expression) God only knows who else.

It is easy to get caught up on either side of the polarized debate. There are however also those observers in Turkey who argue for the necessity of once and for all ridding Turkish politics of the legacy of military influence, while simultaneously criticizing the AKP for replacing military tutelage with civilian tutelage. AKP may say that they are acting in the name of democratization but they are not themselves acting as true democrats. On the contrary they are using the existing rules and regulation aimed at state control with civilian politics to consolidate their own power. Upholding the 10 percent threshold in national elections is but one example of this. In this sense AKP follows in the footsteps of a long and by no democratic standards glorious political party tradition in Turkey. It is also in this context that one can hear speculations as to the extent to which government is able to affect the judiciary. Of course there are problematic areas for example regarding the HSYK. But does this simply mean that the continued politicization of the judiciary is the only reasonable explanation to everything that is going on including the arrest of military personnel, or could it be that part of the explanation has to do with circles in the judiciary who are tired of accusations of lack of independence, and tired of a reputation as somebody’s lapdog? Could it be that there are in fact people in the judiciary who act as they do because they pursue a strengthening of rule of law and the separation of powers?

Why is it, one may now ask, that this latter seems as such a naïve idea in a Turkish context? This I believe has partly to be explained by how the current tensions and political struggles between various elites have reasserted the prominent and popular notion that all acts are part of a larger master plan. Be it the plan of etatist elements or the AKP, the notion that acts are symbolic representations of a larger strategy and initiated by somebody for some higher purpose is by now the dominant lense through which all things must be interpreted and understood. As if there are not enough threats against the development of a democratic culture in Turkey, this is for sure one more problem to add to a long list.

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